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39 Cards in this Set

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Nominal Damages
not used to compensate. Normally a small sum of money awarded to the P in order to vindicate rights. Found in trespass to land cases. We do NOT award nominal damages to tort offenses. If there is no harm there is no recovery for nominal damages. Why not found in negligence actions? B/c these are folks who had a lapse in momentary judgment. Contrast with intentional tort feasors (next to a criminal) we are more than likely to add nominal damages. If you see nominal damages the court is trying to say something.
Compensatory damages
they are to compensate for the harm. If there is a relationship between the complaint/harm and the behavior of the D, you can ask for compensatory damages. They are a reasonable request
Punitive damages
to punish and deter similar tortfeasors in the future. There are certain limitations to what can be given as an award for punitive damages.
“Maximum recovery Rule”
this is the maximum amount a jury could award in this situation. If it is less than what was given by the jury in the particular case then you reduce it to that amount.
- since the maximum amount is more then we leave the original amount alone
- it if is less we reduce it to that amount.
“Special Compensatory” damages
Special Damages- (specific) out of pocket expenses or economic loss (lost wages, taxi’s, hotel) show the bill that is what you get.
“General Compensatory” Damages
(Non-economic damages) Pain and Suffering, loss of enjoyment in life.
Damage Calclulation: Present Value
in a person injury action, a plaintiff is awarded a lump sum to compensate for all future pecuniary losses, such as loss of future wages or future medical expenses. (economic/special loses). Most jurisdictions require that the lump sum award for future losses be reduced to its "present value." That is, the jury is instructed to award the amount of money in a lump that will produce for the P the amount the P would have earned or will need for a future operation. This could be for an operation 10 years down the road it would include the interest plus the principle. Expert witnesses frequently differ as to the predicted interest rate, usually called the "discount rate."
Under General Damages what is Hedonic?
It is loss of enjoyment of life. Most jurisdictions allow P to recover for the loss of specific aspects of their lives as part of the recovery for pain and suffering, while some categorize it as a separate element of damages.
What is the "Integrated Approach" to general damages?
It lumps both pain and suffering and loss of enjoyment in life together.
What is the "Segregated Approach"
a. They are each held out separately
i. Loss of enjoyment in life
ii. Loss for pain and suffering
Why does it matter if the jurisdiction follows an "Integrated" or "Seperate" approach to General (non-economic) damages?
Depending on the language of the statute. If there are integrated there is no way to avoid the cap. If they are segregated, and the staute only applies to the loss of pain and suffering. The lawyer can show there is an argument that can say “loss of enjoyment of life” is not subject to the cap. So they can still recover for loss of enjoyment of life.
What is the Per-Diem Argument?
it is a controversial technique of counsel for the P in arguing to the jury has been to break physical and mental suffering down into days, hours, or even minutes, set a value on each unit, and multiply it by the total number of units that pain and suffering has lasted and may be expected to last. (Not permitted in some jurisdictions) (Varies from lawyer to lawyer and case to case)
What is Remittitur?
If the judge decides to grant a new trial on damages alone the judge may make the grant conditional. To avoid the expense, delay an inconvenience of new trials in these cases, trial courts frequently, in cases of excessive verdicts, grant a montion for a new trial that is conditioned upon the refusal of the P to accept a lesser amount.
What is An Additure?
When the verdict is inadequate, the trial judge, much less frequently, may grant the motion for a new trial conditioned on the D's refusal to pay a larger sum set by the court.
Future Inflaction
P's attorney's have argued that the jury should not merely reduce lump sum awards to present value, but also should consider the countervaiing effect of future inflation. They content that an upward price movement is probable and that valuing future damages in germs fo presetn prices does not fuly compensate the victim. Ex. today's 50,000 a year salary will be 52,000 next year. Most jurisdictions have recognized the need to adjust for expected future inflasiont in some way. The inflation discount method seeks to avoid undercompensation by increasint expected future earning to accout for inflation then discounding to present value by the market interst rate.
Federal Income Tax
P's award for personal injuries is not subject to the federal income tax. A tort victim can exclude from gross income the amount of compensatory damages received on account of persona injuries. Punitive damages, however, are considered income.
Montgomary Wrd
A trial court must exclude evidence of payments received by the injured party from sources collateral to the wrongdoer, such as private insurance or government benefits.

Court Rationale: The law rationalizes that the claimant should benefit from the collateral source recovery rather than the tortfeasor, since the claimant has usually paid an insurance premium or lost sick leave, whereas the tortfeasor has paid nothing and would end up with a total windfall. There is no evidence that MW had anything to do with the discount. None of the exceptions applied to the facts at hand, there was no testimony by the Pl that invokes any of the exceptions. R2d ss920A(2) ‘it is the tortfeasor’s responsibility to compensate for all harm that he or she causes, not confined to the net loss that the injured party receives.’

Gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due a personal injury PL. The ct prefers to allow the innocent Pl, instead of the tortfeasor Df, to receive any windfall associated w/ the cause of action.
Collateral Source rule
As a general rule, damages are not reduced or mitigated by reason of benefits recieved by p from other sources. (e.g health insurance, sick pay from employer) These damages rules are generally applicable to action based on intentional torts.
Why does this policy work for damages?
- The collateral-source rule (note 2) apples unless evidence is relevant for the purpose other than to mitigate damages. 1.) It would encourage parties to purchase insurance. (premium paid) 2.) Don’t like tortfeasors. 3.) P should be able to receive the benefits of the relationships. 4.)Subrogated right
What is a subrogated right?
- If you have insurance and they pay for medical services that are provided to you. And you recover for a wrong in trial. Then blue cross and blue shield has a lein on those assests and you are required to pay them back for the money they gave you. This is called a Subrogated Right.
- The discount from the hospital was considered a collateral source. Also, Discounts, Employment benefits, Gifts, Insurance. Anything that comes from a source that is not a party to the damages.
Exceptions which allow collateral source payments to be introduced:
1) to rebut the Pl’s testimony that he/she was compelled by financial necessity to return to work prematurely or to forego additional financial care; 2) to show that the PL had attributed his condition to some other cause, such as sickness; 3) to impeach the Pl’s testimony that he/she paid his medical expenses himself; 4) to show that the Pl had actually continued to work instead of being out of work, as claimed.
Duty to mitigate damages (Doctrine of avoidable consequences)
As in all cases, the P has a duty to take reasonable steps to mitigate damages-- in property cases to preserve and safeguard the property, and in personal injury cases to seek appropraite treatment to effect a cure or healing and to prevent aggravation. Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury. Test is: if under the circumstances an ordinarily prudent person would do so.
Factors to be considered:
1. Risk involved
2. Probabililty of Sucess
3. Expenditure of money or effort.
Failure to mitigate
if for a surgury can result in loss of wages and pain and suffering.
Can you recover Punitive Damages in Intentional Torts?
Punitive damages are generally permitted when D has committed an intentional tort. BUt, there are still times when a techinical tort may be committed without malice. Where the absence of ill will or malice may bar a claim for punitive damages.
Can you recover Punitive Damages in Negligent Torts?
Conduct short of intentional wrongdoing also may be sufficient to justify punitive damages in most jurisdictions. This is spelled out by "reckless disregard for the rights of others"
Conduct that is merely negligent, even if it causes severe damage, is insufficient to juestify punitify damages. This is usually held to be true of gross negligent conduct. (conduct of a hit and run drunk driver was gross negligence, but not the willful recklessness that would support punitive damages.
Strict Liability in tort
"actual malikce" requirement is satisfied in product liability case by showing of actual knowledge of the defect and conscious or deliberate disregard of the forseeable harm resulting form the defect.
Should punitvit damages be available against the estate of a deceased tortfeasor?
controversy what happens if the D is already dead. Lawyers have convinced some courts that charging certain estates that it is not deterring. Others have said that the fact that they died should not preclude from gaining the money. Courts are split
Can the P recover Punitive damages if she has suffered no compensable harm?
Indiana has a requirement that there be compensatory damages coupled with punative. HOwever, other courts have deemed it sufficient that the plaintiff prove the element of her underlying cause of action even in if the jury does not actually award compensatory damages.
Can award of nominal damages support an award of punitive damages?
general rule that compensatory damages are required for award of punitive damages does not apply in case of intentional torts of tresspass.even if there is no compensatory award be sure so ask for nominal because if you don’t ask for some sort of recovery you won’t be able to get punitive damages.
State Farm Mutual Automobile V. Campbell
Issue: Can you recover a bigger amount of punitive damages than compensatory damages?

BMW set the standard for reviewing punitive damages

1. The degree of reprehensibility of the D's misconduct

2. The disparity between the actual or potential harm suffered by the P and the punitive damages award and..

3. The difference between the punitive damages awarded by the jury an dthe civil penalties authorized or imposed in comparable cases.
1st QuidePost

Degree of Reprehensibility
considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard fot eh health and safety of others; a repeated action; or harm was a result of intentional malice, trickery, or deceit. The existance of any one of these factors in favor of the P may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.
2nd Quidepost

The disparity between the actual or potential harm suffered by the P and the punitive damages award
 from the state farm case we know that if the ratio is greater than 10:1 you better be able to be able to show us a good reason for us to deviate from that double digit language in state farm.
 Second, what is the ratio. That does not mean we can’t have one. It means that we may not allow it to stand. Where the compensatory award is high. Maybe that is enough
3rd Quidepost:

The dispartiy between the punitive damages award and the "civil penalties authorized or imposed in comoparable cases"
review other cases and try not to compare to criminal cases
Punitive Challanges:

Procedural Due Process
Evidence of wealth is admissible in a punitive claim and only in a punitive claim. We need to know what is necessary to punish the D. The reason why what we are dealing with in other cases are compensatory damages, and they are not based on the D ability to pay. If the jury is allowed to hear how much money the jury has. It may be inclined to give more money it they know that the D is capable of paying. If we hear that the D is impoverished then maybe the Jury won’t find that they acted negligently.
How have Many jurisdictions have developed various safeguards to protect against the misuse of the wealth evidence?
Some require that the P make case showing of entitlement to punitive damages before permitting discover of financial information. Others require that the trial be bifurcated so that the jury does not hear evidence of defendant's financial status until after it has fuled on liability, compensatory damages, and liability for punitive damages, then court determines amount.
Can a D show that he has already been punished?
Some courts permit the D to show that he has been criminally punished for the same wrong or punished in an earlier civil suit in an effort to lower the amount of punitive damages imposed
What is the burden of proof for establishing entitlement to punitive damages?
It must be clear and convincing evidence in most jurisdictions. This standard is between "preponderance of the evidence" and the crominal standard "beyond a resonable doubt."
Does the insurance company cover punitive damages?
D's sometimes carry liability insurance that provides for reimbursement of "all sums" incurred in defending tort lawsuits against them. Can the insurance company avaid these payments by arguing that it is against public policy that insured to shift the burden of punishment to an insurance company? Courts split.. some feel that the burden should not shift because it won’t punish the insurance holder. Other feel that Insurance companies should be responsible and if they want to exclude they should put it in the contract.